The FBI was right not to arrest Omar Mateen before the shooting

Citizens should not forfeit their rights if they haven't committed a crime.

Glenn Greenwald, co-founder of the Intercept, led the NSA reporting that won the 2014 Pulitzer Prize for the Guardian.

June 17, 2016

The massacre at an Orlando LGBT club has predictably provoked the same reaction as past terror attacks: recriminations that authorities should have done more to stop it in advance, accompanied by demands for new police powers to prevent future ones. Blame-assigners immediately pointed to the FBI’s investigation of the Orlando shooter, Omar Mateen. “The FBI closed this file because the Obama administration treats radical Islamic threats as common crimes,” GOP Sen. Lindsey O. Graham argued on Fox News. “If we kept the file open and we saw what he was up to, I think we could have stopped it.” Others cited core fundamental rights, demanding they be eroded. “Due process is what’s killing us right now,” proclaimed Democratic Sen. Joe Manchin about the FBI’s inability to act more aggressively against Mateen.

Ever since the Sept. 11 attack almost 15 years ago, every act of perceived terror, and even thwarted ones, have triggered identical responses. The Boston Marathon attack, for instance, prompted this critique of the bureau, which had looked into the older brother: “Many people thought the FBI should have continued to investigate [Tamerlan] Tsarnaev until the Boston plot was uncovered,” David Gomez recalled this week in Foreign Policy. About Orlando, he wrote: “As more terrorists become successful in hiding from the FBI in plain sight using encryption and other means, perhaps it is time to revisit the probable-cause standard to open investigations in potential terrorism cases.”

Underlying this mind-set is an assumption that is both dubious and dangerous: that absolute security is desirable and attainable. None say that explicitly, but it’s the necessary implication of the argument. Once this framework is implicitly adopted, a successful attack becomes proof that something went wrong, law enforcement failed to act properly and more government authorities are needed. To wit: Hillary Clinton this week proposed an “intelligence surge” to halt “plots before they can be carried out.” And Donald Trump called for more intelligence activity to give “law enforcement and the military the tools they need to prevent terrorist attacks.”

This is wrong, and based on what we know, the FBI acted properly. Agents have the power they need, and they were right to close the case on Mateen. Just because someone successfully carried out a violent mass attack does not prove that police powers were inadequate or that existing powers were misapplied. No minimally free society can prevent all violence. In the United States, we do not hold suspects for crimes they have not committed.

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It is possible, indeed probable, that violent attacks will occur even with superb law enforcement. This is the tradeoff we make for liberty.

The complaint that the FBI, once it had Mateen under suspicion, should have acted more aggressively to stop him illustrates a kind of pathology. By all accounts, Mateen had committed no crime (though his ex-wife later said he had battered her). At the time the FBI decided to close its file on him, he had not joined any terrorist organization, nor attended a terror training camp, nor communicated with terror operatives about any plots. Although he boasted to office colleagues about ties to al Qaeda and Hezbollah, agents found those claims dubious. There is not, as far as we know, even evidence that he had expressed support for violence.

When the FBI has reason to suspect someone of extremist activity, they open an investigative file and gather whatever information they can. But once they conclude that there is no evidence of criminality, they close the file. That’s how it should be: none of us should want permanent inquiries into citizens without evidence of lawbreaking, and we should certainly not want punishments meted out based on unproven suspicions. The FBI followed these principles in closing its file on Mateen, and it deserves praise for that, not armchair criticism. “As I would hope the American people would want, we don’t keep people under investigation indefinitely,” FBI Director James Comey said. If agents “don’t see predication for continuing it, then we close it.”

What plausible theory exists for empowering the government to restrict the actions, rights or liberty of a citizen who has broken no laws? For obvious reasons, the temptation to vest more power in law enforcement agencies is potent after witnessing carnage like what we’ve seen this week in Orlando. Our compassion and instinct tells us: isn’t it worth any cost to prevent such a massacre in the future?

But history leaves no doubt about the serious costs, and dangers, from straying too far on the liberty-security axis. Encouraging law enforcement agencies to take action against citizens who are not even charged with, let alone convicted of, breaking the law is inherently abusive, and certain to lead to its own serious injuries.

Those dangers are vividly seen by examining the long list of American Muslims who have arrived at an airport expecting to travel, only to be told that they have been secretly deemed by unidentified officials as too suspicious to board an airplane, and have no effective recourse to challenge or even learn the basis for this restriction. That Democrats, who once found such due-process-free no-fly lists appalling, now seek in the wake of San Bernardino and Orlando to expand their use to ban gun purchases illustrates how easily terror attacks induce an abandonment of reasoned analysis.

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We collectively understand tradeoffs in many other contexts. Outside of disease and suicide, the most common cause of death for Americans is fatal car accidents. Roughly 36,000 people died from car-related deaths in 2015 (gun deaths are a close second). There are numerous measures that could be taken to reduce car accidents: lowering speed limits, bolstering safety regulations for automakers, putting stop signs and lights on every corner. But our reflexive response to reading about an auto fatality is not to demand implementation of these measures.

That’s because we rationally assess that this fatality level — tragic and horrifying as it is — is the worthwhile cost paid in exchange for the benefits of efficient auto travel and affordable cars. We understand that absolute safety on the road is neither attainable nor desirable – and that we can minimize, but cannot fully avoid, the risk of injury or death if we want to use automobiles efficiently. We accept that some deaths are inevitable.

Yet Americans have eschewed that reasoning process in the face of terrorism and mass attacks. Each attack has been cited as intrinsic proof of policy failures, of the need for greater powers and more aggressive policing. We insist on endlessly trading liberties for false security, eagerly doing so with each new attack.

That mind-set does far more harm than good. In the wake of Sept. 11, it ushered in the Patriot Act, mass surveillance, torture and two decade-long wars. It led to the official dilution of Miranda rights for terrorism suspects after Omar Abdulmutallab attempted to blow up a plane over Detroit in 2010 with a bomb in his underwear. And it led Hillary Clinton and Donald Trump to advocate new and aggressive responses to Orlando: from an escalation of the bombing campaign against various ISIS locales to increased surveillance activities.

Terror attacks, by design, succeed in terrorizing. If you are a resident of any western country, it is more likely that you will die from a lightning strike than from a terrorist attack perpetrated by a Muslim. Writing in The New Yorker in early this year, the physicist Lawrence Krauss noted that “even if you include 9/11, the total death toll from terrorism amounts to less than one per cent of the death toll from gun violence.”

Hypothetically, there may one day be a threat severe enough to justify rebalancing security and liberty. But terrorism, by every metric, comes nowhere close. It is obviously unfortunate that nobody was able to stop Mateen, but that does not mean the FBI could or should have.

Glenn GreenwaldGlenn Greenwald, co-founder of the Intercept, led the NSA reporting that won the 2014 Pulitzer Prize for the Guardian. Follow